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Michigan
Court of Appeals Judge Peter O’Connell has issued a mind-blowing
opinion that is very supportive of the anti-smart-meter community.
Basically, O’Connell says that the MPSC and Consumers Energy have not
proved their side of the case for smart meters, and puts forth many of
the same questions and arguments that we in the anti-smart-meter
community have been positing. He supports further investigation of the
health and privacy issues.I highly recommend reading his opinion.Background:
A group of Consumers Energy customers and the Attorney General had
appealed the Michigan Public Service Commission’s (MPSC's) decision to
allow Consumers to implement smart meters. The Court of Appeals decided
that the MPSC had not properly decided all the issues and sent the case
back (“remanded” it) to the MPSC. The MPSC didn’t like this, and it
asked the court to “reconsider” its remand. In commenting on the denial
of the motion for reconsideration, Judge O'Connell writes, “[The
MPSC] contends that no further hearings are necessary concerning the
advanced metering infrastructure (AMI) smart meter program.” The court disagreed, and has stuck by its original decision to remand the case. However, the court did not agree with Judge O'Connell's opinion that the remand should consider any issues other than the fairness of the cost of the opt-out program. This is extremely unfortunate, but we now know that we have a friend on the court, and someone who can see the issues with great clarity. It is inevitable that the case that is once again before the MPSC will be appealed once the MPSC makes a decision, because if we lose, we will appeal, and if Consumers and the MPSC lose, they will appeal. Hopefully, the Attorney General (who supports us on this issue) will also appeal if we lose.

Judge O’Connell's Opinion on Costs

“The
PSC and Consumers Energy advance the notion that smart meters will save
the

public money on their utility bills. Unfortunately, this argument
is inherently illogical: how can smart meters save money when Consumers
seeks to add millions of dollars to the base rate to fund the AMI
program? It appears, as the Attorney General argues and as in other
states, that the smart meter program actually increases rates.”

“I
am concerned that under the opt-out program, those who opt-out must pay
either a penalty, tax, or a fee for the privilege of retaining their
non-smart meters. This Court, in its prior opinion, approved the PSC's
order allowing costs to fund the AMI smart meter program to be added to
the utility's base rate. At first glance, it appears the opt-outers are required to pay twice for the privilege of retaining their non-smart meter.
The first payment is in the form of a penalty, tax, or fee to avoid
having a smart meter installed on their home,5 and the second payment is
of continued costs associated with the AMI smart meter program that
eventually will be added to the base rate.”

“Why
both charges? On remand, the PSC should answer that question. In the
case of the opt-outers, they receive no benefit from the AMI smart meter
program and must actually pay to be excluded from it, but then the
opt-outer must also share in the costs of the program because of the
increase to the base rate.”

“From this lower court record I am unable to discern the genesis, the reasons, or the rational for such an unprecedented double tariff.”

“I am also greatly concerned that the opt-out costs are actually a penalty
imposed to force the opt-outers to comply with the AMI program. . . .
The PSC's implied finding that it is a fee/tariff rather than a penalty
or a tax is not supported by even a scintilla of evidence in this lower
court record. Just because the PSC says it is so on appeal does not make it so.”

“for the reasons stated in this opinion, I conclude that a cost-benefit analysis [of smart meters] should include health, safety, and privacy issues”; in other words, the MPSC must consider more than just monetary aspects of the smart meter program

all the issues surrounding smart meters have not been heard and should be; despite its claims, the MPSC has not “thoroughly” addressed the smart-meter issue

the
customers who appealed have not had an opportunity to present evidence
(he is very curious to see what proof will be presented, which leads us
to ask the question whether the lawyers for the customers will gather
the proper and adequate evidence, not just make grandiose claims)

citizens have a right to be heard

a very recent U.S. Supreme Court decision held that “‘cost’
includes more than the expense of complying with regulations; any
disadvantage could be termed a cost. ... including, for instance, harms
that regulation might do to human health or the environment"(Michigan v
EPA, 576 US ___, at 7 (2015)).

“because
the PSC has not weighed the burdens, benefits, costs, and advantages of
the entire AMI program, I am convinced that its decision is not
supported by competent, material, and substantial evidence” [This
argument is similar to the argument the court made with regard to the
smart water meter case which is discussed in an earlier blogpost today: You have
to present sufficient evidence. In this case, he feels, the MPSC and
Consumers Energy did not. In the smart water meter case, the court of
appeals panel felt that the customer did not. We cannot emphasize enough—extreme
detail and presentation of every possible piece of evidence is
absolutely necessary to have even a hope of winning in court. In
addition, you have to cover all the legal bases.]

“the
individual appellants argue that the opt-out program violates federal
and state laws governing disability and ask the PSC to consider
additional health, safety, privacy, and disability-related cost issues,
including that smart meters may place individuals with
electro-sensitivity issues, pacemakers, and heart-related issues in
danger”

“supplementing
this record with additional facts and conclusions of law that actually
support the PSC's ultimate decision and giving the individual appellants
their day in court is a fundamental requirement of our form of
government”

There is no
guarantee as to what the MPSC will do, nor as to what the Court of
Appeals will do if this case comes before it again after the MPSC
reconsiders it. At a minimum, we have a clear articulation of some basic
rights and basic guidelines the courts and the MPSC should follow. And
Judge O'Connell is the first judge to state the obvious: How can smart
meters be saving us money when the utilities have had to raise rates (or
get lots of free money from the government) to put them in? How can
charging people an up-front fee to keep their opt-out meter be fair? The
MPSC has never really considered the health and privacy issues, except
by selectively considering industry and a few other publications.Judge
O'Connell took the MPSC to task for failing to submit adequate evidence to back
up its claims. It is this same failure to present adequate evidence that has,
at least in part, caused some Michigan smart meter cases to fail. We cannot
emphasize enough the importance of having competent
legal counsel.

Saari to the Michigan Public Service Commission. He spent 30
years at Consumers Energy, then worked in the legislature. We can bet we will be
an advocate for the people, given his industry ties (sarcasm intended!). We can
be he will also work hard to keep the legislature on the side of the utilities.
Snyder, on the other hand, says Saari will “fairly and objectively” help
Michigan obtain a “reliable, affordable” energy supply that protects the
environment. As the Times-Herald
opinion piece says: “Who won’t ask themselves how a man drawing a pension from
Consumers Energy can regulate that company fairly and objectively? Who won’t
question whether Consumers’ competitors might be at some small disadvantage
when Saari is one of the three commissioners setting the rules for them?”

For the past two years, Saari has been chief of staff to Republican
House Speaker Kevin Cotter and
former Speaker Jase Bolger, says
the Detroit
News.

The MPSC’s mission statement “is to grow Michigan's economy
and enhance the quality of life of its communities by assuring safe and reliable energy and
telecommunications services at
reasonable rates.”